96 Pa. 381 | Pa. | 1881
delivered the opinion of the court, January 3d 1881.
The contention involved in several of the specifications of error is, that the defendant was an incompetent witness to prove anything that occurred in the lifetime of his father, respecting the possession or ownership of the lot in controversy. It is claimed that, in the statutory sense of the term, his father, under whose will the plaintiff claims title, was her assignor, and therefore defendant was incompetent.
The Act of April 15th 1869 declares, in general terms, that “no
Several of these provisions have no direct bearing on the precise question under consideration, but they are here noticed for the purpose of better bringing into view the general scope and spirit of the act. While the legislative purpose to establish a new rule of evidence is clearly expressed, the intention to exclude from its operation certain persons disqualified on grounds of public policy, and cases in which inequality and consequent undue advantage would otherwise result, is equally manifest. One of the evident purposes of the proviso was to exclude certain cases in which it was impossible for the opposing parties to be placed on a footing
The defendant was undoubtedly competent to prove anything that occurred after the decease of his father the plaintiff’s testator; but was he competent to prove what occurred before? He undoubtedly was unless the action was one of those to which the proviso declares the act shall not apply, for example, “ where the assignor of the thing or contract-may be dead.” If, in the statutory sense, the plaintiff’s devisor wuis her assignor of the lot in controversy, then, by the very terms of the proviso, the act did not apply, and the defendant W'as therefore incompetent to prove any fact or circumstance that occurred in the lifetime of his father, tending to show that he acquired and held possession of the lot, either adversely to him or as his donee. This must be determined by the nature and character of the claim and defence, as disclosed by the testimony. The plaintiff, claiming as devisee under the will of her husband, proved that he acquired the title by deed of conveyance from Benjamin Hayden, in August 1847, and in connection therewith, gave in evidence the will, duly probated in February 1874, by which the property was devised to her in fee. The claim of title thus exhibited gave her a clear prima facie right of possession. On the other hand, the defendant, not questioning the goodness of the title acquired by his father in 1847, claimed under the Statute of Limitations, alleging “ that he went into possession of the lot-in dispute in the spring of 1848, claiming it as his own; that he occupied and held it as such from that time until the bringing of this action in 1879; that from time to time he made valu
In view of the evidence, showing distinctly the position in which the parties stood with reference to the title, the language of the proviso, as well as the spirit of the act, and the construction it has heretofore received, we are clearly of opinion that the testator must be regarded as the assignor of the plaintiff within the fair intendment and meaning of the act. As is said in Hess v. Grourley, supra: “ In the statutory sense, .the assignor of the thing or contract is he whose rights therein or thereunder, at or before the time of his decease, passed by his own act, or by law, to a party in the action.” The title which the testator had to the lot in controversy, at the time of his decease, passed then by his will to the plaintiff, by whom the same title is now represented in this action. He was, therefore, in the proper sense of the term, the .assignor of the thing in action. The case was one of the class which is excepted from the operation of the general rule of evidence prescribed' by the Act of 1869, and the defendant was, therefore, clearly incompetent to prove the facts and circumstances to which he testified, as having occurred in the lifetime of his father in relation to the ownership and possession of the lot. He was adversary to the deceased assignor whose title, represented by the plaintiff in the action, his testimony tended strongly to defeat. The first six specifications of error are sustained.
In view of the nature of the defence that was interposed, we cannot say there was error in refusing to charge as complained of in the remaining assignments. The defendant did not rely on the alleged parol gift, except for the purpose of establishing the adverse character of his possession. His defence was that he went into possession in 1848, claiming the property in his own right and not in subordination to his father’s title, and continued to so hold it
Judgment reversed, and a venire facias de novo awarded.